State v. Rosen

Defendant Jacob Rosen and Henry Sincavage were indicted jointly for breaking and entering with intent to commit larceny. A second indictment charged that at the same time and place they were in knowing possession of burglar's tools. The indictments were consolidated for trial over objection of defendants that each defendant should be tried separately on each indictment. The jury returned a verdict finding the defendants guilty of breaking end entering with intent to commit larceny, but acquitted them of the charge of possession.

2. The trial court erred in refusing to dismiss the charge of breaking and entering with intent to commit larceny at the end of the State's case when the proofs showed at most an entering without breaking.

3. The trial court committed error in the refusal to dismiss the indictment for breaking and entering with intent to commit larceny at the end of the State's case when there was no proof that defendant was not validly on the premises.

4. The trial court committed error in refusing to grant a mistrial because of the prosecutor's comment in summation that the defense was a "smoke screen."

5. The trial court committed plain error in allowing evidence to be admitted which referred to the commission of other crimes by the defendant, and also committed plain error in its comments with reference to such evidence.

6. The trial court erred in its charge to the jury (a) that breaking need not be proved (b) as to reasonable doubt (c) in its failure to charge that the appellant had to be present at the scene by pre-arrangement.

7. The trial court committed error in denying defendant's motion for a new trial on the ground that the jury verdict was inconsistent.

8. The trial court committed error in denying defendant's motion for a new trial on the grounds that the verdict was against the weight of the evidence and the result of mistake.

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